Justices take up affirmative action

The Supreme Court jumped back into the fractious debate over affirmative action Tuesday, hearing a challenge to a statewide ban Michigan voters imposed in 2006 on consideration of race or gender in public education, employment or contracting.

The fate of the measure appeared to be in the hands of Justice Anthony Kennedy, who suggested at the outset of the argument that the Michigan constitutional amendment was clearly invalid under a three-decade-old Supreme Court precedent.

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“I have difficulty distinguishing” between Michigan’s ban and a Washington state ban on racial busing that the court struck down in 1982, Kennedy said.

However, later in the hour-long afternoon session, Kennedy seemed troubled by the implications of the rule the court applied in that case forbidding race-related changes to the structure of the political system. He appeared concerned that the rule might sweep so broadly as to be unwise or unworkable.

A ruling in Schuette v. Coalition to Defend Affirmative Action upholding the Michigan constitutional amendment is unlikely to end all affirmative action programs, but it could lay out a road map for those looking to end those programs in individual states.

Major universities and civil rights groups have supported the legal battle against the Michigan measure, approved by voters in 2006, 58 percent to 32 percent.

The other justices lined up largely as expected Tuesday. Justices Antonin Scalia and Samuel Alito seemed strongly inclined to find the Michigan affirmative action ban constitutional, as did Chief Justice John Roberts. Justice Clarence Thomas remained silent as is his custom, but based on past rulings is also expected to wind up in favor of allowing the Michigan measure to stand.

Justices Sonia Sotomayor and Ruth Bader Ginsburg made it fairly evident they would vote to strike down the ballot initiative, which became an amendment to the state’s constitution.

Justice Stephen Breyer was harder to read and at one point seemed to share some of the same line-drawing concerns as Kennedy, Roberts and Alito, but Breyer has traditionally supported autonomy for educational institutions.

Justice Elena Kagan recused herself from the case.

As a legal matter, the Michigan case is likely to turn not on the merits of affirmative action itself, but on the viability of a longstanding legal principle that the court laid out back in 1969. Under the “political restructuring doctrine,” the court invalidated a change to the city charter in Akron, Ohio, that required all measures relating to racial or religious discrimination be put to a referendum.

In 1982, the Supreme Court used the same theory to throw out the Washington state busing ban.

The court found both changes unconstitutional because they placed a special and unfair burden on racial and religious minorities seeking to assert their interests in the political process.

Opponents of the Michigan measure say it acts similarly, by prohibiting minorities from seeking preferences in the college admissions process while alumni and donors can continue to seek special accommodations for their children.

American Civil Liberties Union attorney Mark Rosenbaum urged the justices to strike down the ban, arguing that it effectively prevents a student from arguing to admissions officers that his or her race should be taken account of in the process.

“That student is shown the door and told, ‘Go raise $5 [million] to $15 million and repeal Prop. 2 and then come back,” Rosenbaum argued.

“The people of the state of Michigan have multiple options…..One option they don’t have is to treat racial matters differently than all other matters,” he added, calling the measure a “racial classification.”

“It’s not a racial classification,” Scalia interjected. “It’s a prohibition of racial classification.”

Several justices asked a version of the same question but got few answers: Who could ban affirmative action without unconstitutionally tilting the political process against minorities? Since faculty and administrators generally set admissions policies, could a dean overrule them? A college president? The state legislature?

“At what point is it that your objection takes force?” Kennedy told Rosenbaum. “I just don’t understand the declension here, or the crescendo — whatever you call it.”